Voros v. Turnage

• Decision Date: 06 May 1993
• Docket Number: No. 01-92-00013-CV,01-92-00013-CV
• Citation: 856 S.W.2d 759
• Parties: Joseph Frank VOROS, Appellant, v. Kathleen TURNAGE, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 759

856 S.W.2d 759

Joseph Frank VOROS, Appellant, v. Kathleen TURNAGE, Appellee.

No. 01-92-00013-CV.

Court of Appeals of Texas Houston (1st Dist.).

May 6, 1993.

Glendon B. Adams, Richard A. Mayhan, Stafford, for appellant.

James B. Hicks, Waller, for appellee.

Before COHEN, SAM BASS and HEDGES, JJ.

OPINION

COHEN, Justice.

This is an appeal from a trial to modify a divorce decree.

Joseph F. Voros and Kathleen Turnage were divorced in 1986. The decree designated Turnage as managing conservator and Voros as possessory conservator. Voros was ordered to pay child support for their two children. Voros was not ordered to provide medical insurance for the children.

In 1990, Turnage moved to modify the divorce decree, requesting increased child support and assistance with medical insurance for the children. Turnage also sought to modify Voros' access and visitation to the children, claiming the original terms were unworkable.

Voros resisted the motion, and filed a cross-motion for modification seeking increased visitation with the children.

The judge ordered Voros to pay increased child support and granted Voros increased possession and visitation rights in the summer. The judge, however, disallowed Voros possession of the children on Wednesday evenings, and disallowed Voros possession for an extra day whenever his regularly scheduled weekend visitation coincided with a Friday or Monday holiday. Further, the judge ordered Turnage to provide medical insurance for the children. Voros was ordered to pay one-half of all uninsured medical expenses for the two children. His liability for these expenses was capped at $2,500 per year. The judge granted Voros an offset against his increased child support obligation for amounts paid to cover the children's uninsured medical expenses.

In his first point of error, appellant claims the trial judge abused her discretion by denying appellant standard visitation rights mandated by TEX.FAM.CODE ANN. § 14.033 (Vernon Supp.1993).

Appellate courts give trial judges wide discretion with respect to custody control, possession, and visitation matters involving the child. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex.1982). The judgment of the trial judge will be reversed only if it appears from the record as a whole that the judge abused her discretion. Gillespie, 644 S.W.2d at 451. The test for abuse of discretion is whether the trial judge acted without reference to any guiding rules or principles; in other words, whether the act was arbitrary or unreasonable. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990).

The original decree named appellant as possessory conservator of the children. The legislature has provided guidelines for trial judges to follow when determining periods of possession for a possessory conservator. TEX.FAM.CODE ANN. § 14.03(b) (Vernon Supp.1993). There is a rebuttable presumption that the standard possession order provides the minimum possession of the child for a parent named as a possessory conservator and that the order is in the best interests of the child. TEX.FAM.CODE ANN. § 14.033(k) (Vernon Supp.1993). ¹ If the judge orders less time of possession than the guidelines require, she shall, upon timely request, state in the order the specific reasons for all deviations from the standard possession order. Id. This requirement in section 14.033(k) is mandatory. See Chamberlain v. Chamberlain, 788 S.W.2d 455 (Tex.App.--Houston [1st Dist.] 1990, writ denied) (court held virtually identical language in TEX.FAM.CODE ANN. § 14.057 was mandatory and required the judge to file findings of fact detailing specific reasons an order varied from the guidelines).

Here, the trial judge varied from the guidelines by denying appellant possession of the children on Wednesday evenings, and holidays that extended weekends. See TEX.FAM.CODE ANN. § 14.033(c)(2), 14.033(d) (Vernon Supp.1993). Despite Voros' timely request, however, the judge did not state in the order the specific reasons for the deviations from the standard possession order. As such, we stayed proceedings in this Court and directed the judge to prepare supplemental findings of fact, pursuant to TEX.FAM.CODE ANN. § 14.033(k), stating her specific reasons for deviating from the standard order. Voros v. Turnage, 849 S.W.2d 353 (Tex.App.--Houston [1st Dist.] 1992) (order). The trial judge has complied with our directions, and we can now determine whether she abused her discretion in deviating from the standard order.

Although the possession guidelines create a rebuttable presumption, they do not force a judge to give every possessory conservator the same set of visitation orders. A judge may determine the application of the guidelines would be unworkable or inappropriate under the circumstances and not in the best interests of the child. TEX.FAM.CODE ANN. § 14.033(k). "In determining the terms of possession of a child, the [trial judge] shall be guided by the guidelines, and may consider, in varying from or following the guidelines:

1) the age circumstances, needs, and best interests of the child;

2) the circumstances of the managing conservator and of the parent named as possessory conservator; and

3) any other relevant factor."

TEX.FAM.CODE ANN. § 14.032(c) (Vernon Supp.1993) (emphasis added).

The judge's findings of fact here reflect several factors that influenced her to deviate from the standard possession order regarding Wednesday and extended holiday visitations. The judge found:

1) Evidence showed, as did an in-chambers interview with the children, that Turnage and the children have established a routine and are active together in church and Boy Scout activities that occur during the weekdays. In the interview, the judge explored the possibility of the father's involvement in some of these mid-week activities and found that it was neither practical nor the children's desire that the current routine be disrupted. Testimony showed that even though Voros was given a schedule of little league games, he failed to bring the children to games during his periods of visitation. The judge found that the disruption of the involvement of the children in their activities and routine was not in the best interests of the children, and was good cause for variance from the guidelines;

2) Testimony showed one of the children had some special psychological needs and is in counseling. Testimony and the interview with the children revealed that the exchange of the children between parents continues to be hostile and disruptive to the children. The judge found that the additional disruption in the middle of the week is not in the children's best interest and is good cause for variance from the guidelines;

3) The distances between the residences was found to be another factor that renders Wednesday visitation impractical. The travel time between the parties residences exceeded an hour. Moreover, one child had symptoms of epilepsy and needed a consistent and stable environment. The judge found Wednesday visitation would be disruptive of that consistency;

4) The judge found that because this is a modification of a prior order, and not an original divorce, and because the children are now 11 and 14 years old and have established outside activities, the children's desires expressed to the judge were taken into account when the judge varied from the guidelines.

Other courts have refused to find an abuse of discretion when a trial judge eliminated mid-week visitation for reasons similar to those here. In Fair v. Davis, 787 S.W.2d 422, 431 (Tex.App.--Dallas 1990, no writ), for example, the trial judge modified a decree and eliminated the mid-week visitation for reasons which included: 1) in the time since the divorce, the parties moved further from each other, and the children were spending one or two hours of the five hour mid-week visitation on the road; 2) the children were three years older since the divorce, and their age had caused a substantial change in the scope of their activities; 3) one child was having difficulty with homework and showing a lack of performance at school, which was possibly caused by a distraction or diverted attention the day the child returned from the mid-week visitation; 4) the children were involved in piano lessons and gymnastics that were scheduled on Monday and Wednesday evenings, and those activities were disrupted because the father, at times, had refused to take the children to the activities on Wednesdays and would not allow the children to practice piano during periods of visitation. 787 S.W.2d at 429-32.

Not only are the factors here as strong as those found in Fair, in addition, the trial judge here also took action to offset the elimination of the mid-week visitation and extended holiday. The judge granted Voros a telephonic visit with the children on two Wednesdays each month. Moreover, in modifying the prior decree, the judge granted what Voros himself characterizes as "an extensive increase in the visitation and access of Voros with his two children." This increase included extended possession time for Voros during the children's summer vacation.

Voros asserts there is no evidence anywhere in the record which addresses the issue of weekend possessions extended by holidays. ² As mentioned above, the judge listed several factors which influenced her to deviate from the guidelines regarding Wednesday and extended holiday visitations. One was the children's desires expressed to the judge in their interview. There is no record of that interview. In the absence of a statement of facts, the reviewing court will presume the evidence is sufficient to support the judgment. Men's Wearhouse v. Helms, 682 S.W.2d 429, 430 (Tex.App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.), cert. denied, 474 U.S. 804, 106 S.Ct. 38, 88 L.Ed.2d 31 (1985). Thus, we must presume the evidence from that interview supports the judge's findings.

Voros claims this Court cannot consider any...